Common Surrogacy Agreement Mistakes
Biggest Surrogacy Agreement Mistakes
One of the biggest decisions you can make in life is adding to your family. And what a joyous time this can be! But despite all the joy a baby can bring, it’s important to ensure that you cover all your legal bases when using a gestational surrogate. Consulting with an experienced reproductive technology lawyer can ensure that your surrogacy agreement is legal and enforceable, making the entire process less stressful and more joyful for all of you.
Gestational Surrogacy in New York
In the Spring of 2020, the state of New York enacted a new law known as the Child Parent Security Act (CPSA). CPSA makes compensated gestational surrogacy agreements legal. This is wonderful news for families that need to use assisted reproductive technology to expand their families, expanding your options and making it easier to enter into these agreements in New York.
A gestational surrogate carries and delivers a child for another person or couple without sharing a biological link to the baby. Couples may use a donor egg, donor sperm, their own genetic material, or a donor embryo. After creating and transferring the embryo, the gestational surrogate carries the child like any other pregnancy, but the intended parents will become the child’s legal parents upon birth.
People that may use gestational surrogacy include:
- Couples who have struggled with infertility,
- Hopeful single parents,
- Couples concerned about passing on genetic conditions,
- LGBTQ+ parents, and
- Those who can’t safely carry a pregnancy to term.
Still, it’s important to ensure that you have a surrogacy agreement in place, to make a gestational surrogacy agreement legal, and ensure the intended parents are the legal parents upon birth,
Common Surrogacy Agreement Mistakes
Now that you’re contemplating a surrogacy agreement, there are some common mistakes you should work to avoid.
Paying a Gestational Surrogate Directly
It’s a good idea to include how you will cover expenses and payments in your surrogacy agreement. Setting up an escrow account can ensure your funds cover pregnancy-related expenses, including medical expenses, travel costs, and payments to your surrogate.
Foregoing Counseling
You may be completely confident in your decision to use a gestational surrogate. Still, pregnancy and birth can be emotional and stressful, even for the most mundane and routine of pregnancies. Bringing a third person into the process can bring up emotional reactions none of you were expecting. New York law requires all the parties involved in a surrogacy agreement to give informed consent. It also gives your surrogate the right to comprehensive health care, including behavioral health care. While New York law doesn’t require that prospective parents or surrogates go through psychological evaluations, counseling may be a good option to ensure that you’re all on the same page, with the same expectations for the process.
Residing in the Wrong State
Even though compensated surrogacy is now legal in New York, it isn’t legal in every state. Some states completely ban surrogacy contracts, whether compensated or not, and some states make these agreements wholly unenforceable. You may also run into issues using a gestational surrogate who resides in another country. Working with an experienced reproductive technology attorney is important to ensure that your agreement is enforceable and that you will be the legal parent when the child is born.
Failing to Address Pregnancy Dangers
While your gestational surrogate may have the best intentions, everyone has a level of personal risk they’re willing to accept during a pregnancy. It may be a no-brainer to ensure that your surrogate won’t drink excessively or use drugs. Still, you may have different ideas about lower-level risks such as caffeine consumption, healthy eating, visiting the salon for chemical treatments, or using over-the-counter medications. If it’s important to you that your surrogate avoid certain activities like hot tubs, tattoos, and extreme sports, you can include this in your surrogacy agreement. Addressing risk ahead of time can help you avoid conflict and worry during the pregnancy.
Failing to Discuss Avoiding Sex
Let’s talk about sex! While it may not be reasonable to insist that your surrogate avoid sex during the pregnancy, there is a period after an embryo transfer when it is possible for your surrogate to also become pregnant with their biological child. Superfetation is rare, but it can happen. Your surrogacy agreement can directly address when your surrogate should avoid sex to avoid this possibility.
The Miller Law Group
Expanding your family through gestational surrogacy can be wonderful, but you need legal guidance. At the Miller Law Group, we can help you navigate this complex area of the law to achieve your goals with integrity and thoughtful collaboration. Call us today, to schedule a confidential consultation.
